Wiggins v Pittwater Council - [2006] NSWLEC 286

Land and Environment Court

of New South Wales

CITATION: Wiggins v Pittwater Council [2006] NSWLEC 286

PARTIES:
APPLICANT
James Joseph Kenneth Wiggins
RESPONDENT
Pittwater Council

FILE NUMBER(S): 11476 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Subdivision, driveway gradient

LEGISLATION CITED: Pittwater Local Environmental Plan 1993
Pittwater 21 Development Control Plan

DATE OF JUDGMENT:
04/11/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Creighton, agent
RESPONDENT
Mr M Causer, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

11 April 2006
11476 of 2005 James Joseph Kenneth Wiggins v

Pittwater Council

JUDGMENT

This decision was given extemporaneously and has
been revised and edited prior to publication

1 This appeal relates to Development Application No. 214/05 which is effectively for the re-subdivision of two lots into three lots at Nos. 91 and 93 Powderworks Road, North Narrabeen. Number 93 is a large hatchet shaped property with an area of 1,542 sq m. Number 91 is a long narrow rectangular frontage lot with an area of 1,268 sq m.

2 The existing access corridor is 5 m wide and about 37 m long and is developed with a concrete driveway having gradients up to 30.8% and a set of dilapidated steps with some vegetation. The combined site has a fall of about 29 m from the street to its rear boundary.

3 The site is included in the Residential 2(a) Zone under Pittwater Local Environmental Plan 1993 and the proposed development is permissible with development consent. Also applicable to the site is Pittwater 21 Development Control Plan (“the DCP”).

4 The application was notified to surrounding residents and four objections were received. Those residents gave evidence at the hearing: Mr R Clements, Mr M Simpson, Mrs K Skelly, and Mr T Mackay, expressing concerns including: the steepness of the driveway and associated safety concerns including the possibility of out-of-control cars crashing and leaving the site; the difficulty of access for construction vehicles; the inadequacy of existing and proposed stormwater drainage arrangements; the loss of a number of existing mature trees; and the future dwelling house on the new lot would have overlooking implications.

5 The application was recommended for refusal by council’s Development Unit. The council subsequently invited the applicant to submit amended plans to address the recommended reasons for refusal, particularly in relation to the driveway gradient. This offer was not taken up and the matter proceeded to appeal.

6 At the hearing the Court was advised that the only issue of concern to the council involved the access driveway which will, if a house is erected as anticipated on the additional lot, be utilised by two dwellings rather than one. Vehicle trips generated will be doubled from nine to 18 vehicle trips per day. Taking this into account, as well as the matters of concern to the residents, and having considered the other issues referred to in the Statement of Issues, I agree that this is the only issue that requires the determination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 286
Decision Date: 11 April 2006

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, James Joseph Kenneth Wiggins appealed against a decision by Pittwater Council to refuse his Development Application No. 214/05, which sought to re-subdivide two lots into three lots at Nos. 91 and 93 Powderworks Road, North Narrabeen. The key issue before the Court was whether the appeal should be upheld and conditional development consent granted for the re-subdivision, focusing on the proposed driveway gradient. The existing access corridor was 5 m wide and about 37 m long, with a concrete driveway having gradients up to 30.8% and a set of dilapidated steps with some vegetation. Surrounding residents objected to the steepness of the driveway and associated safety concerns, difficulty of access for construction vehicles, inadequacy of existing and proposed stormwater drainage arrangements, loss of existing mature trees, and overlooking implications of the future dwelling house on the new lot.

The council recommended refusal of the application, particularly in relation to the driveway gradient, and invited the applicant to submit amended plans to address the recommended reasons for refusal. The applicant did not take up this offer, and the matter proceeded to appeal. The court was presented with expert opinions from both sides on what was an appropriate maximum longitudinal gradient for the driveway reconstruction. Mr. Brisby, the council's engineer, believed that the maximum gradient recommended in the Australian Standard AS/NZ2890.1-2004 and Pittwater DCP21 of 25% was the appropriate gradient. On the other hand, Mr. Marshall, the applicant's consultant engineer, believed that the proposed maximum gradient of between 31.5 and 31.8% was acceptable.

After considering the provisions of the Pittwater 21 Development Control Plan and the expert opinions, the court decided that section B6.1 of the DCP, which deals with access driveways for residential development up to two dwellings, was relevantly applicable. The court concluded that a gradient up to 33% could be acceptable, subject to a merit assessment, and that the requirement that it be certified by a qualified traffic consultant that access is safe was met by the evidence of Mr. Marshall. The court also found that the proposed changes to the driveway, including widening, resurfacing, the introduction of a signposted speed limit, the installation of two speed humps, the rearrangement of gradients at and in the vicinity of the street frontage, the provision of new steps alongside the pavement, and the provision of a properly graded turning area and a crash barrier, were of considerable benefit.

Therefore, the court decided that the appeal should be upheld and conditional development consent granted. The conditions shall be in accordance with Exhibit 8, including the disputed condition, which is to be imposed on the basis of it being consistent with the associated provision in the DCP. Exhibits B and D will be retained on the Court’s file.

Orders